| Matter of Cole v Nofri |
| 2013 NY Slip Op 04455 [107 AD3d 1510] |
| June 14, 2013 |
| Appellate Division, Fourth Department |
| In the Matter of Heather A. Cole, Appellant, v MichaelJames Nofri, Respondent. Kelly M. Corbett, Esq., Attorney for the Child,Appellant. |
—[*1] William M. Borrill, New Hartford, for petitioner-appellant. Getnick, Livingston, Atkinson & Priore, LLP, Utica (Thomas L. Atkinson ofcounsel), for respondent-respondent.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.),entered April 6, 2012 in a proceeding pursuant to Family Court Act article 6. The order,insofar as appealed from, dismissed that part of the petition seeking a modification ofcustody.
It is hereby ordered that the order insofar as appealed from is reversed on the lawwithout costs, the petition is granted in part by awarding primary physical custody of thechild to petitioner and visitation to respondent, and the matter is remitted to FamilyCourt, Oneida County, for further proceedings in accordance with the followingmemorandum: Petitioner mother commenced this proceeding seeking, inter alia, tomodify a prior order of joint custody granting respondent father physical custody of theparties' child (child) by awarding physical custody of the child to her. As limited by theirbriefs, the mother and the Attorney for the Child (AFC) appeal from the order insofar asit dismissed that part of the petition seeking a modification of the parties' custodyarrangement on the ground that the mother failed to establish a change in circumstances.
A party seeking a change in an established custody arrangement has the "burden ofestablishing a change in circumstances sufficient to warrant an inquiry into whether thebest interests of the child warranted a change in custody" (Matter of York v Zullich, 89AD3d 1447, 1448 [2011]). Although, as a general rule, the custody determination ofthe trial court is entitled to great deference (see Eschbach v Eschbach, 56 NY2d167, 173-174 [1982]), "[s]uch deference is not warranted . . . where thecustody determination lacks a sound and substantial basis in the record" (Fox vFox, 177 AD2d 209, 211-212 [1992]). Moreover, "[o]ur authority in determinationsof custody is as broad as that of Family Court" (Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1450[2007]; see [*2]Matter of Louise E.S. v W. StephenS., 64 NY2d 946, 947 [1985]).
We agree with the mother and the AFC that the mother met her burden ofestablishing a change of circumstances. Since the original custody trial, each party hasremarried and has had two additional children who are younger than the subject child,and the father has two step-children who are older than the subject child. The evidenceestablished that the child felt isolated in the father's home and indicated a strong desire tolive with the mother. While a 10-year-old child's preference regarding the parent withwhich he or she would like to reside is not dispositive, it is a factor to consider indetermining whether there has been a change in circumstances (see Matter of Taylorv Rivera, 261 AD2d 947, 948 [1999]; see generally Matter of Dorsa v Dorsa, 90 AD3d 1046,1047 [2011]). The evidence further established that the child's anxiety with respect toliving with the father has progressed to the point where he has expressed to others histhoughts of harming the father and the father's family, which led the parties to agree thatthe child needs counseling.
The father contends that, inasmuch as there was no showing that he was unfit or lessfit than the mother, the current custodial arrangement should not be altered simply toaccommodate the desires of the child (see Fox, 177 AD2d at 211). We reject thefather's contention that the current custodial arrangement should not be changed. TheCourt of Appeals has cautioned that "[t]he only absolute in the law governing custody ofchildren is that there are no absolutes" (Friederwitzer v Friederwitzer, 55 NY2d89, 93 [1982]), and that "no one factor, including the existence of the earlier decree oragreement, is determinative of whether there should, in the exercise of sound judicialdiscretion, be a change in custody" (id. at 93-94). We conclude that this case isunique because the record establishes that the child suffers from extreme anxiety as aresult of the current custodial arrangement. Although the reason for his anxiety is notclear, it is clear that the child is not doing well under the current arrangement. Thus, onthis record, we conclude that there has been a sufficient change in circumstanceswarranting an inquiry into whether the best interests of the child would be served bymodifying the existing custody arrangement.
Inasmuch as the record is sufficient for this Court to make a best interestsdetermination, we will do so "in the interests of judicial economy and the well-being ofthe child" (Bryan K.B., 43 AD3d at 1450). After reviewing the relevant factors(see Fox, 177 AD2d at 210), we conclude that it is in the child's best interests toaward the mother primary physical custody of the child. While the father has been theprimary residential parent for the past five years, the mother is better able to provide forthe child's emotional needs. The evidence established that the child confided in themother and felt secure addressing his emotional issues with her, whereas he was afraid todiscuss any issues or problems with the father. Given the child's anxiety, the mother'sability to provide for the child's emotional needs is a factor that should be accordedgreater weight. We therefore reverse the order insofar as appealed from and grant thepetition in part by awarding the mother primary physical custody of the child andvisitation to the father, and we remit the matter to Family Court to fashion an appropriatevisitation schedule.
All concur except Martoche, J., who dissents and votes to affirm in the followingmemorandum.
Martoche, J. (dissenting). I respectfully dissent and would affirm the order that, interalia, dismissed the petition. Preliminarily, I note that the parties were divorced inDecember 2005, and the child who is the subject of this proceeding (child) had justturned four years old at that time. Following a trial, the parties were granted joint custodyof the child, and respondent father was granted primary physical custody. Although thetranscript of that trial is not included in the record on appeal, I can only conclude that adetermination was made that it was in the best interests of the child for the father to haveprimary physical custody. In November 2006, petitioner mother filed a petition seeking amodification of the parties' custody arrangement by awarding her sole legal and physicalcustody of the child (2006 modification petition). The [*3]mother alleged two changes in circumstances, namely thatthe child was "forced to endure excessive 'shuffling' between the parties, created by [thefather's] change of hours at his job" and that the child was suffering from emotionaldifficulties, including separation anxiety stemming from his separation from the mother.The 2006 modification petition, according to the accompanying decision of SupremeCourt, also alleged that the child displayed aggression toward his teacher and "created ahuge disruption [in] his class." The child apparently underwent a psychologicalevaluation in January 2005 because of his temper tantrums and separation anxiety, andwas diagnosed in March 2005 with an "Adjustment Disorder Unspecific." With respectto the 2006 modification petition, Supreme Court concluded that the mother failed toshow the requisite change in circumstances. The court expressed its concern regardingthe child's emotional problems, but the court noted that the mother was aware of thechild's alleged difficulties with temper tantrums and separation anxiety as early asJanuary 2005, i.e., well before the judgment of divorce and initial custody determination.
In January 2011, the mother commenced this proceeding and again sought amodification of the parties' custody arrangement. Family Court interviewed the child incamera in September 2011, and in November 2011 a lengthy trial was held on thepetition. The court heard testimony from the parties, relatives of the parties, the newspouses of each party, parents of children who played with the subject child, and thechild's teachers and coaches. The court also heard testimony from a clinical socialworker, who had several counseling sessions with the child. The social worker testifiedthat the child told her that he felt "left out" when he was at the father's house and that hewanted to "pound [the father] with [a] mallet." On another occasion, the child told herthat he wanted to slit the father's throat. The social worker admitted that she was unawarethat the father was the primary custodial parent, and further admitted that she did notcontact the father for several months after seeing the child.
Following the trial, the court concluded that the mother had failed to meet her burdenof establishing a change in circumstances. Specifically, the court found that theexplanations given by or on behalf of the child concerning why he did not want to livewith the father were not supported by the credible evidence. The court further concludedthat the child's hostility was "exacerbated by the parents' juvenile inability to agree onappropriate counseling" for the child. The court determined that, although the childwould be "somewhat more comfortable" in the mother's house, both households weresuitable and neither the mother nor the attorney for the child demonstrated a real need fora change in custody. The court stated its concern that applying the "simple standard" ofwhat is "currently" best for the child would create the "risk [that the child would need to]change residences [from] year to year, season to season, or even month to month." Thecourt, citing Fox v Fox (177 AD2d 209 [1992]), further recognized that a childof 10 or 11 years of age generally is not of sufficient maturity to weigh intelligently thefactors necessary to make a wise choice as to custody. Finally, the court noted that thechild expressed a strong desire not to reside with the father despite the child's inability to"identify serious specific problems" at the father's house, and stated its belief that"incessant pressure" by the mother to transfer custody of the child to her had affected thechild's emotional well-being.
It is well settled that this Court will not disturb a custody determination of FamilyCourt where there is a sound and substantial basis in the record for that determination (see Matter of Matthews vMatthews, 72 AD3d 1631, 1632 [2010], lv denied 15 NY3d 704[2010]), particularly if that determination is based upon the court's "first-hand assessmentof the credibility of the witnesses" (Matter of Howden v Keeler, 85 AD3d 1561, 1562 [2011][internal quotation marks omitted]). Moreover, a party seeking modification of anestablished custody arrangement must show a change in circumstances reflecting "a realneed for change to ensure the best interest[s] of the child" (Matter of Di Fiore v Scott, 2AD3d 1417, 1417 [2003] [internal quotation marks omitted]). The majorityconcludes that the child's desire to reside with the mother should be considered when[*4]determining whether there has been a change incircumstances. As the majority recognizes, a 10-year-old child's preference is notdispositive of the issue whether there has been a change in circumstances, but the expresswishes of an older and more mature child may support a finding of a change incircumstances (see Matter ofBurch v Willard, 57 AD3d 1272, 1273 [2008]). Here, the court expresslyconcluded that the child was not of sufficient maturity to make a "wise choice as tocustody" (Fox, 177 AD2d at 211), and I see no reason to disturb thatdetermination.
The majority also concludes that the child's "anxiety with respect to living with thefather" constitutes a sufficient change in circumstances to warrant a best interestsanalysis. I disagree. As noted, the father was given primary physical custody of the childwhen the child was four years old, and the mother shortly thereafter sought amodification of that custody arrangement on the ground that the child was sufferingemotional trauma and separation anxiety. At that time, Supreme Court dismissed the2006 modification petition without a hearing. Clearly, the mother has a pattern ofalleging that the child is suffering from emotional disturbances as a result of living withthe father. I can only conclude, however, that, at the time of the original custodydetermination, Supreme Court concluded based on its assessment of the hearingtestimony that it was in the best interests of the child to reside with the father.
Even assuming, arguendo, that the mother established a sufficient change incircumstances in the instant matter to warrant a best interests analysis (see generally Matter of Burrell vBurrell, 100 AD3d 1545, 1545 [2012]), I nevertheless disagree with themajority's decision to modify the parties' custody arrangement. Although the majorityconcludes that the record is sufficient for this Court to make its own best interestsdetermination, I note that there was no expert testimony on that issue, and the only"expert" who testified was a social worker who saw the child at the mother's request andwithout notification thereof to the father. On this record, I would be reluctant to make abest interests determination without any expert testimony regarding the underlying basisfor the child's thoughts of harming the father and the child's anxiety with respect to livingwith the father. If I were to make a best interests determination, as the majority does, Iwould conclude that the existing custody arrangement should remain in place. First, thefactor regarding the continuity and stability of the existing custody arrangement weighsin favor of the father (see Fox, 177 AD2d at 210). Additionally, the recordestablishes that both parties are relatively fit and loving parents and are equally able toprovide for the financial needs of the child. The primary facts favoring the mother ascustodial parent are that the child gets along better with his stepfather than with hisstepmother, the child is unhappy in the father's house because he feels ignored there, andhe feels more nurtured and comfortable with the mother. In my view, the fact that thechild gets along better with the members of one of the households should not necessitatea transfer in custody. As the court noted, relying on what is currently "best" for the childwould create the risk that the child would need to change residences frequently.Additionally, I hesitate to transfer custody without some expert testimony regarding thechild's interactions with the parties. Unlike the majority, I do not believe that this case is"unique," but rather I believe that it involves facts that are common in divorce, i.e., achild suffering from the effects of living in two households, particularly where eachparent has remarried and there are step-siblings residing in each household. Thus, Iwould defer to the judgment of Family Court, which heard voluminous testimony overseveral days, conducted an in camera interview with the child, and made specificfindings of fact and conclusions of law based upon the testimony. I would, therefore,affirm the order. Present—Centra, J.P., Fahey, Carni, Sconiers and Martoche, JJ.